1. ' ABDUL HAYEB KURESHI, ACTG. C. J.-On the conclusion of the hearing of this appeal on 24th February, 1983, we had, by a short order, granted the following reliefs :- "We grant an injunction in favour of the plaintiff (the appellant) to restrain each and every defendant (respondent) from doing, or, causing to be done any act, or, deed in respect of the title, possession, or, other interest relating to the property, which is the subject-matter of the dispute.
2. ' The plaintiff (the appellant) shall deposit a sum of Rs, 15 lakhs in Court within two weeks from today. In case the plaintiff (the appellant) fails to comply with this term, the order, granting injunction shall stand vacated without any further notice, or, order of the Court.
3. ' We only need to make a request to the learned Single Judge, sitting on the Original side, to proceed with this case with as much speed as possible. While we would not wish to lay down any time schedule, we would indeed feel grateful if he would finish the main suit within eight months from today.
4. ' The Receiver, appointed by the learned Single Judge, shall continue to exercise all the rights and perform all the duties which he has to as the Receiver.
5. ' This appeal stands disposed of, and there shall be no order as to costs." The reasons for such short order follow presently.
6. ' The appellant, Muhammad Mateen, has filed the present appeal against an order of the learned Single Judge on the Civil Original Side of this Court in Suit No, 115/1981, dismissing an application by the present appellant/ plaintiff for grant of a temporary injunction to restrain the respondents from selling and/or purchasing the property, which is the subject-matter of the said suit.
7. ' For the purpose of describing the respondents, it is more convenient to refer to respondents 1 to 5 as the "owners" and respondents 6 to 9 as the "purchasers".
8. ' We have heard Mr. S. Shareefuddin Pirzada (appearing on 2nd and 3rd February, 1983), Mr. Naseem Farooqi, Mr. Z. U. Ahmed and Mr. Haider Ali Pirzada for the appellant. We have also heard Mr. Akhtar Mahmood, appearing for both the groups of the respondents, namely, the "owners" and "purchasers".
9. ' The brief facts of the case are that, on or about the 5th December, 1962, the "owners" entered into a deed of lease collectively with Muhammad Ali Hemani, Shaikh HabibLur-Rehman, S. Muhammad Kamelin, Muhammad Mateen (the appellant) and Mujib-ur-Rehman for a period of twenty years.
10. While the "owners" were referred to in the said lease deed. Collectively as the "lessors", the appellant and five others lessees were collectively referred to as the "lessees". The lease provided that Muhammad Ali Hemani and Shaikh Habib-ur-Rehman had six annas share in the lease, 5.
11. Muhammad Kamelin had two annas share, appellant Muhammad Mateen has one and a half annas share and Mujib-ur-Rehman half anna share in the lease. It was however, provided that Muhammad Ali Hemani has to make the payment of rent to the "owners", although all the lessees (including the appellant) were jointly and severally liable to the lessors for payment of lease money. (The underlining* is ours). The other pertinent clauses of the lease were that the lessees shall demolish the building and structure existing on the plot; and erect on the said plot such buildings as they may think best, but at their own cost. It is stated at the Bar that some constructions, including 100 shops, have been constructed by the lessees. The lease deed also provided that, on the expiry of the period of lease, the lessees had to hand over the building to the 'owners" without obtaining any compensation, and the structures raised would become the property of the "owners". It was also provided that the lessees had to complete the ground floor and the first three storeys of the proposed building, unless force majeure prevented them. It was also provided that the lessors could construct additional storeys at their own expense during twenty years viz. The period of the lease. Para. 16 of the lease is the most pertinent clause for the purposes of the case, and it is best to reproduce the same verbatim. It reads as follows "16. That the lessees agree that the lessors shall have the right and be at full liberty to sell the property at any time during the pendency of this lease, provided always that the rights of the lessees under this Lease shall not be affected and provided also that the first preference to buy the said property shall be given to the lessees at the price offered by any party which the lessors are desirous of accepting."
12. ' An arbitration clause was also inserted in the lease, which is numbered as "clause 21".
13. ' On 8th February 1979, the "owners" sent a notice to the appellant, lessees, Habib-ur-Rehman and Mujib-ur-Rehman, and also to Mushtaq, Mst. Tahira, Mst. Farida and Mst. Sughra Bai, the legal heirs of the remaining two lessors, namely, Muhammad Ali Hemani and S. Muhammad Kamelin. At this stage, it may be stated that, before 8th February, 1979, the "owners" had filed a suit, bearing No, 254/1975, on the Original Side of this Court for appointment of arbitrator within the meaning of arbitration clause, and such arbitration as well as the suit were pending. It may also be stated that the "owners" had also filed some ejectment applications before the Rent Controller for evicting the lessees. However, these are separate proceedings with which we are not directly concerned in the present appeal. To cut the matter short, the notice, dated 8th February, 1979, stated that the "owners" had been offered a sum of Rs, 15 lakhs by a prospective buyer, who had agreed to complete the sale within one month, and, since paragraph 16 of the lease deed provided for a sale of the property in question to the appellant and the co-lessors, the first preference for buying the property was offered to them. The lessors were asked to convey their willingness to accept the offer within one week, and, in case the offer was not accepted within the said time, the "owners" would deem that the offer had been declined. On 19th February, 1979, the present appellant informed the "owners" that he was prepared to purchase the property for the sum mentioned in the notice. It was, however, not stated, whether they would complete the sale within a month. On 22nd February, 1979, the "owners" wrote another letter, in which it was stated that willingness to purchase the property had been expressed only by the appellant, who was one of the lessors and even such acceptance did not convey, whether the time of one month for completion of the sale had been agreed to. The demand in this notice was in the following words :- "You are therefore requested to be kind enough to please clarify if your client is prepared to purchase the property and to pay Rupees one lac fifty thousand as earnest money on the execution of the sale agreement and the balance of Rupees thirteen lac fifty thousand only within one month as mentioned above. If your client is prepared to do the same please advise your client to enter into an agreement of sale within three days of the receipt of this letter, failing which it will be deemed that your client is genuinely not interested to purchase the property, but he has sent his offer simply with a view to disturb our client's transactions and our client will enter into agreement of sale with the purchaser mentioned in our previous notice."
14. ' A telegram was sent by the present appellant to the Advocate for the "owners", stating that his Advocate had met with an accident on 20th February, 1979, and suffered a head injury, so that he had been advised complete rest till 5th March, 1979. In the end, it was stated that the acceptance was genuine, and a request was made to wait for finalising the transaction till the Advocate resumed his normal work. On 14th March, 1979, the Advocate for the appellant informed the "owners" that his client was "determined to purchase the property in question", but, before the sale agreement is drafted, further clarifications about the property in question with regard to the rights of the "owners" had to be examined. It was also stated that the Advocate for the appellant would also like to see, whether the claims stated in paragraphs 2 and 3 of the notice, dated 8th February, 1979, viz, regarding the arbitration case and the offer of Rs, 15 lakhs by a third party were correct, willingness was shown to payment of ten per cent of the price as earnest money "any moment" the "owner" wanted. This letter was not replied to until 8th April, 1979. It was reiterated that the prospective purchaser was willing to pay Rs, 15 lakhs, and that also within one month, which one month had expired long back. It was stated that the appellant was side-tracking the issue.
15. However, the appellant was told to enter into an agreement within a week. The appellant was advised to avoid unncessary delay. In the last paragraph of this letter, it was stated that, in case the appellant did not enter into an agreement within a week and pay Rs, 15 lakhs within a month, "it will be deemed that your client (appellant) is not interested in purchasing the property"' and the offer made by the "owners" to the appellant shall be deemed to have been refused by the appellant. On 15th April, 1979, the appellant wrote to the "owners" reminding them of his letter, dated 14th March, 1979, asking them to clarify the rights and claims of the "owners". It was also stated that, in the original lease agreement, the period of one month was not prescribed, and therefore the appellant was not to be dictated by the "owners". Though he had a right to purchase the property in question. It was stated that the property should be sold free of all encumbrances and the "owners" should disclose their lights and claims to the same. It was stated that the appellant was not only ready to purchase the said property, but he had offered to the "owners" to collect the earnest money long ago, and they could still collect the same on any working day. This letter was, however, not replied.
16. ' The "owners" had, on or after 1st October, 1980 by a several general powers of attorney, appointed one Aziz-ur-Rehman to convey the property in question in favour of the four "purchasers", namely, respondents 6 to 9. It may, however, be stated that three photostat copies of three separate Pay Orders, each for a sum of Rs, 50,000 have been placed on the record to show that, on 15th April, 1979, the appellant had obtained these Pay Orders in the names of the "owners". It is contended that these three Pay Orders were obtained for payment of earnest money to the "owners".
17. ' It seems that, after the lull, following the letter, dated 15th April 1979 (referred to above), nothing in regard to the sale of the property was referred to, or, made a grievance of by any party until the filing of the suit on 25th February, 1981. No doubt, some negotiation and perhaps even payment has taken place between the "owners" and "purchasers" in the middle of 1980.
18. ' It was in these circumstances that the appellant filed a suit for specific performance of the agreement of sale. A declaration was sought that clause 16 of the lease deed constituted a concluded contract, and therefore any agreement made by the "owners" with the "purchasers" was illegal, and of no binding effect on the plaintiff. A declaration was also sought that the correspondence, that ensued between the appellant and the "owners" constituted a binding and concludes contract. A permanent injunction was also sought to restrain the "owners" from entering into, or, executing any agreement of sale, or, alienation with any person. The suit was initially filed against the "owners", but subsequently the purchaser group also joined the contest.
19. ' The learned Single Judge first considered the question, whether the plaintiff had made out a prima facie case. Reference was made to the letter, dated 15th April, 1979, wherein the appellant was asked to enter into an agreement within one week, as otherwise "the plaintiff shall understand that your clients have entered into the agreement of sale with any other party." Since this letter was not replied, the learned Judge inferred that prima facie the "owners" offer had not been accepted in toto. The appellant asking for some compliance of certain conditions before entering into the agreement was construed as exhibition of reluctance to enter into an agreement. The learned Judge, therefore, concluded that it was doubtful if there was a concluded contract between the "owners" and the appellant. In the same paragraph, the learned Single Judge has stated that this observation in regard to existence of a concluded contract was tentative in nature. Subject to the decision after recording the evidence. On the point, whether the balance of convenience lay in favour of the appellant, or, whetller the appellant would suffer any irreparable loss, the learned Single Judge took notice of the fact that the "purchasers" had entered into an agreement with the "owners", and had paid the entire sale consideration. The learned Single Judge also took note of a statement made by Mr. Khalid M. Ishaq, the learned Advocate, who had appeared for the "owners" and/or the "purcliasers" before the learned Single Judge, to the effect that the "purchasers" had also taken possession of the property, and that except the appellant, all other coalesces had compromised, or, surrendered their rights in favour of the "owners" and "purchasers". The learned Single Judge also took note of the fact that the suit having been filed after about one and a half years of the end of correspondence between the appellant and the "owners", exhibits "disinterestedness" of the appellants. The order also stated that, although the owner had expressed his willingness to perform his part of the agreement he had not deposited the sale consideration in Court to prove his bona fides. On such process of reasoning, the learned Single Judge came to the conclusion that the balance of convenience was not in favour. Of the appellant. Nor would any irreparable loss be caused by refusal of the injunction.
20. ' It must be stated straightaway that the suit has yet to proceed, and no evidence has been recorded, although lengthy affidavits have been filed and numerbus documents have been placed on record. In that respect, in, regard to the point of the appellant having a prima facie case as to merit the grant of an interim injunction, the learned Single Judge had observed that his finding, negating the existence of a prima facie case, was only tentative in nature, which would mean that it was liable to be displaced on the basis of evidence that was yet to be recorded. The learned Single Judge, however, had not considered the consequential complications, which would ensue in case such tentative findings were displaced. The learned Single Judge bad also not stated in the order that the appellant was given an opportunity, or, had been directed to deposit the sale price and had failed.
21. For the grant of an injunction at an interlocutory stage of the suit, the plaintiff only needs to show that he has a prima facie case, that the balance of convenience between the parties as well as for avoidance of complications would lie in favour of the party seeking the injunction, and lastly that the plaintiff would suffer irreparable harm by refusal of an injunction. We propose to examine each one of these questions separately.
22. ' Before we go to the merits of the appeal in so far as the cardinal rules for grant of injunctions are considered vis-a-vis application of such rules to the facts of the present case, we would like to dispose of a preliminary objection raised by Mr. Akhtar Mahmood in regard to the maintainability of this appeal. The learned Advocate has urged before us that the provisions of Order XLI1I, rule 3, C. P.
23. C., requiring notice before presentation of appeal, had not been complied with, because the applicant, who has given notice of such appeal to the respondent, or, his Advocate, had not complied with the rule. Rule 3 was enacted by Ordinance X of 1980. It reads as follows "3. Notice before presentation of appeal.-(1) Where an appeal against an order is preferied during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the "respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the :appeal and may be awarded costs on dismissal of the appeal in limine."
24. ' The contention of Mr. Akhtar Mahmood is that the use of the word "shall" in the said rule would seem to indicate that rule was imperative and mandatory. A counter-affidavit was filed on behalf of the respondents on 2-4-1983, and the same is at page 421 of the record. An objection was taken on the ground of non-compliance with this rule, and it was stated that the appeal was liable to be dismissed summarily on such ground of non-compliance. However, when this appeal came up for admission on 17-1-1983, Mr. Akhtar' Mahmood was present on pre-admission notice. It was stated by Mr. Akhtar Mahmood that he would not press this point. No doubt, the Order-Sheet, dated 17-1- 1983, does not mention that this point was not being pressed, but, during arguments, Mr. Akhtar Mahmood as well as Mr. Naseem Farooqi stated that Mr. Akhtar Mahmood did say so. However, Mr. Akhtar Mahmood stated that, since the point was one of law and touched what he called the jurisdiction of this Court, he may be permitted to argue the same. We are, however, of the view that the point was not in regard to jurisdiction of the Court, but merely in relation to a correct exercise of power of this Court.
25. Ordinarily, the word "shall" is construed as couching a mandatory pro-I vision, but very often the words "shall" and "may" connote inter-changeable concepts. The point has been considered by some learned authors. Crawford in "Satutory Construction" 1940 edition, at topics 261 and 262 has considered the question in all aspects. At page 520, the learned author has stated the case as such :- "Nevertheless, it will always be presumed by the Court that the Legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvienience, or for some other reason is clearly contrary to the obvious intention of the Legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the Legislature intended the words "shall" and "must" to be directory, they should be given that meaning. Similarly, under the same circumstances, the word "may" should be given a mandatory meaning, and especially where the statute concerns the rights, and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionality."
26. ' Maxwell on "The Interpretation of Statutes", Twelfth Edition, at page. 314 has also stated the case as follows : "It is impossible to lay down any general rule for determining whether a provision is imperative or directory. "No universal rule", said Lord Campbell L. C., "can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
27. ' In the same treatise, the learned author has referred to the judgment of Scarman J., in the case of B. v. B. (1). In that case, the learned Judge was considering a question in relation to the import of a provision, stating that Court shall not make any decree for divorce, or, nullity of marriage absolute, unless and until the Court was satisfied that the parties had, in the matter of upbringing of the children, made satisfactory arrangement. It may be noted that the statute has used the word "shall" and with the added qualification by use of the word "not", that it appeared that the Court would be completely debarred from making the decree absolute, if conditions were not fulfilled. Yet the learned Judge, at page 397 of the Report, observed as follows,:- "I agree", said the learned Judge (at p. 397) "that prior authority on other statutes is not of great assistance to the Court in determining the intention of the Legislature when this section was enacted. It seems to me that it is my duty to look at this statute, to look at the circumstances in which it was enacted and the purposes that it was intended to serve, and then to come to a conclusion whether the purposes intended this requirement as to the Court's action before making a decree absolute to be something without which the parties should have no decree absolute or merely a beneficial requirement which, if ignored by the parties (of course in all innocence), could thereafter be ignored by the law of the land." {{FOOT NOTE}}
(1) (1961) 2 All E R 396 {{FOOT NOTE}} Craise on "Statute Law", Sixth edition, has considered the point with more particularity in relation to the object of a statute relating to general policy in contradistinction to the object being for the benefit of a person, or, a class of persons. Order XLIII, rule 3, C. P. C. Undoubtedly is not a pro vision regarding general policy of the realm, but only intends to give benefit to a class of persons, who come as suitors before a Court. In that regard, the learned author at page 269 has stated the case thus : "If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, Quilibet potest renuntiare furl pro se interoducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court."
28. ' Mr. Akhtar Mahmood has invited our attention to the judgment of the Supreme Court in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore (1). Mr. Justice Sajjad Ahmad Jan has examined this point by reference to consequences of neglect of plain requirements of statutory enactments, prescribing the mode of doing a particular act. The learned Judge formed a question. It was, whether an enactment is to be considered as absolute, or, directory. At page 70 of the Report, the learned Judge expressed as follows :- "It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
29. (1948) 13 Q. B. 30, it was stated that "the words negative and affirmative of a statute mean nothing.
30. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same."
31. Again, in the case of Mansab Ali v. Amir and 3 others (2), a case decided by our Supreme Court the same point came up for consideration, and the learned Judges once again expressed the opinion that the result, or, consequences of non-compliance would depend on the question, whether the provision is mandatory, or, not. We would also refer to the case of Niaz Muhammad Khan v. Mian Fazal Raqib (3) because, in that case, the nature of the provision had been held to be mandatory, or, directory b {{FOOT NOTE}}
(I) PLD 1971 SC 61 (2) PLD 1971 SC 124
(3) PLD 1974 SC 134 {{FOOT NOTE}} reason of the statute providing for consequences of non-compliance. The learned Judges stated the case as follows :- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
32. The question in regard to a provision being mandatory, or, directory I not capable of an easy answer. The answer has to depend on several questions in regard to the correct interpretation of the statute itself, th objects which the statute wants to fulfil, the consequence which follows the non-compliance of the rule, the prejudice and quantum thereof that it causes F to the other party by non-compliance, the penalty which the statute prescribes in the matter of non-compliance and the nature of the provision, whether it is for the benefit of the entire populace, or, is in the limited sense o the parties being concerned only in a particular cause. All these questions need to be considered, while determining the nature of the provision.
33. ' In the background of forbearance which Mr. Akhtar Mahmood had expressed on 17-1-1983, by stating that he does not press that point, it- is easy to infer that no prejudice has been caused to the respondents. In any case, we are dealing with an appeal, in which we refer to and review only such questions as are already within the knowledge of both the parties. No grievance has been made on the score that some copies of documents, to which reference has been made by the appellant during the arguments, had not been supplied to Mr. Akhtar Mahmood. At no stage of the case, Mr. Akhtar Mahmood has made a grievance that he had been taken by surprise. The point of prejudice, therefore, does not arise in this case at all. We also cannot overlook that Order XLIII, rule 3, C. P. C. Does not(. Provide for the consequences that will ensue in regard to an appeal on account of non-compliance of the rule. One of the important tests in the matter of a rule being mandatory, or, directory is, whether a consequence in the nature of dismissal of an appeal, or, imposition of penalty must ensue on account of the non-compliance. The statute book contains several provisions laying down the consequences for non-compliance of a rule. But, in the instant case, the consequences are not stated, muchless than the dismissal of an appeal for the mere reason of non-supply of copies. This appears to be a rule of convenience and expediency. In the background of legislative process, it may be remembered that before the enactment of Order XLIII, rule, 3 C. P. C, no less than three, or, four successive dates of hearing were consumed, so that the parties could become ready by knowing the case of each other. This rule was enacted, so that such wastage of time could be avoided, but just for that reason, the rule cannot be termed to be a mandatory rule, the non-compliance with which must inevitably result in dismissal of an appeal. We overrule this objection.
34. ' We now proceed to consider if the appellant had made out a prima facie case for grant of an interim injunction. On this point, we may formulate that Mr. S. Shareefuddin Pirzada had urged before us that, in fact, the lease deed executed on 5th December, 1962, is a concluded contract between the appellant and co-lessees on the one hand and the sellers on the other hand. In the alternate, it was contended that the correspondence, that ensued between the parties, as between 8th February, 1979 and 15th April, 1979, also re-affirmed and/or created another contract. It was urged that no time had been provided in the lease deed for completion of the contract after the option of first purchase was given by the sellers to the appellant and co-lessees, and, in any case' a contract would be considered to be a concluded contract, despite the fact that time for fulfilment of the contract had not been specified. It was contended that, at the earliest opportunity, the appellant had expressed his acceptance of the offer made by the sellers vide letter, dated 8th February, 1979. It was contended that the appellant, in spite of being a single person in this litigation, had a right to purchase the property, as the lease deed had created what could be termed a "joint lease", or, "tenancy in common." In that regard, the word "collective", as used in the first paragraph of the lease deed, was only a term of art, and, in any case, the correspondence, which ensued after 8th February, 1979 seemed to indicate that the sellers had recognised the appellant as a person, who had a right to purchase the property to the exclusion of other lessees by virtue of the terms contained in paragraph 16 of the lease deed. On the other hand, Mr. Akhtar Mah mood has contended that the lease deed did not create a concluded contract, and the correspondence also does not create a contract, because one of the main conditions in regard to fulfilment of the contract within a week, had not been agreed to by the appellant. It was also contended that the terms of the lease had not been honoured by the appellant and the co- lessees, and therefore the lease itself had terminated. It was further contended that the oppellant alone was not entitled to purchase the property to the exclusion of other co-lessees. A point was also raised that suit had been filed after delay, and therefore the appellant was not entitled to an injunction.
35. ' The words "prima facia case" have been judicially interpreted and explained in a number of cases.
36. We would not like to burden this judgment by reappraisal of the case-law on the subject except by way of reference to a few cases cases. The case of Suigas Transmission Company v. The Suigas Employees', Union (1), decided by the Supreme Court on 5th October, 1976 has considered the words "prima facie", and the learned Chief. Justice has very succinctly expressed that a prima facie case would be spelt out if a serious question of law, or, fact was raised in the plaint, on which the parties have to go to trial. In such enquiry, the objection by the defendants even as to maintainability of the suit will not be a proper criterion. In the case of S. N. Gupta v. Sadanand Gosh
(2) the entitlement of the plaintiff to obtain an injunction, as district from succeeding in a suit for specific performance, was considered. The point has been assimilated in the text book on Specific Relief Act by Sardar Muhammad Iqbal Khan (1981 edition). The learned author at page 652 has summarised the legal position in the following words:- "Though reliefs by specific performance and by injunction belong to the same branch of law, yet there is a distinction between the remedies, in that specific performance is directed to compel the performance of an active duty while an injunction is generally directed to prevent the violation of a negative duty. The Court by an injunction ties up the bands of the defendant and preserves unchanged not only the property itself but also the relation of all the parties thereto. Again relief by {{FOOT NOTE}}
(1) 1977 SCM R 220 (2) PLD 1960 Dacca 153 {{FOOT NOTE}} way of issue of an injunction is granted by the principle of quia timet, and if the Court finds that there is a substantial question to be investigated and the matter to be preserved in status quo till the final determination of that question, it is a sufficient ground for granting an injunction."
37. The above passage would seem to indicate that the burden on the plaintiff seeking an injunction by an interlocutory application is not as L. Onerous as the burden would be for succeeding in obtaining a decree for specific performance. It would appear that all that the plaintiff needs to establish is. That there is a prima facie existence of a right and a threatened inflingement, and, once he succeeds in showing this, he could obtain an injunction. In pursuit of a finding, the Court has not to enter into minute M and detailed discussion in regard to merits, although a limited examination of the legal aspects in the case would be permissible. On the other hand, the Court will only look to the difficulty in resolving the points that arise in the case, and, if it is of the view that a substantial, or, serious question of law, or, fact arises, the requirement of having a prima facie case would be satisfied. This may be termed even as the plaintiff having an arguable N case, as distinct from the plaintiff having no right at all, or, the plaint making fanciful, or, frivolous claims. In such an enquiry, the Court will also keep in its mind the substance of the stake involved, for example, the value of the property, and the loss that might be occasioned to one, or, the other party by the refusal to grant an injunction.
38. ' In the light of the above principles, we would only like to recapitulate some salient features in the facts of this case for the purpose of determining, whether the plaintiff has an arguable case on points of law and fact. There is no controversy that paragraph 16 of the lease deed executed as early as in 1962 (reproduced above) does speak of the sellers selling the property in question to the appellant and co-lessees, in case they agreed to purchase the property at the price, which any other buyer had offered. In law, if an offer is made and acceptance is communicated a valid contract is created. In a contract of the nature, as is involved in the present case, the requirements are that there should be a party, there should be a property to be sold and the price should be agreed. If these three conditions are fulfilled, then a valid contract does come into existence. On the other hand, Mr. Akhtar Mahmood has argued before us that the acceptance of the offer made by the sellers to the appellant was not full, or, unqualified. He contends that, since the sellers had offered to sell only if the price was paid within a week, then the purchaser must accept such time, if he intends to create a contract, and, in case there was no acceptance in regard to the time for completion of the contract, the proposal is deemed to have been rejected or, refused. It was argued as if time was the essence of the contract. This point has to be considered in the light of well defined principle that, in cases of sale of land, a party can make time the essence of the contract, but only by giving a notice to the other side, in case that other side is guilty of undue del3y in the performance of the contract in a reasonable time. Reference may be made to the case of Jamshed Irani v. Burjorji (1).In any case, time cannot be made the essence of the contract by unilateral action. What is more that whenever time is made the essence of the contract, the Courts have always looked into the circumstances to find out if the time proposed by one, or, the other party is reasonable. A higher duty devolves on the Courts in matters, where the subject-matter of the contract is substantial and very valuable. In this context, it may also be (I) 43 1 A 26 stated that, if the lease deed originally executed in 1962 is examined, it will be found that no time had been fixed by the parties for completion of the contract.
39. ' On the other hand, we cannot lose sight of the fact that acceptance by the appellant was conveyed almost without loss of any time. The appellant has also placed on record photostat of three separate Pay Orders for Rs, 50,000 each to show that he had arranged for payment of the earnest money. Whether these Pay Orders were offered or not, and, if not offered, for what reason would also require consideration on the basis of evidence that has to be recoided. For the present, it is reasonable to assume that Pay Orders for an amount of ten per cent of the value had been obtained by the appellant, and obviously no person would like to block a sum of Rs, 1,50,000 without any reason.
40. ' Mr. Akhtar Mahmood has attempted to set up a case that paragraph 16 of the original lease deed did not create any contract, and that the rights and liabilities of the parties have to be spelt out from the correspondence that has ensued between the parties after 8-2-1979. If we understood him rightly, he appeared to persuade us to take a view that the correspondence did not make out a case in favour of the appellant. We cannot consider the correspondence between the parties in isolation and without reference to the initial lease deed, because the sellers had entered into this correspondence only for the reason that paragraph 16 of the lease deed obliged them to offer the property to the appellant and co-lessees. In fact, the letter, dated 8-2-1979, makes a clear mention of this compelling factor. This correspondence has necessarily to be considered along with the initial lease deed to find out, whether any contract had been created by the initial lease deed, or, by the correspondence, or, by the lease deed and the correspondence together. To say the least, the original lease had created a sort of open contract between the parties, and the subsequent correspondence has confirmed the intentions of the parties qua the property. On the other hand, Mr. Akhtar Mahmood has contended that time being an essential factor underlying the offer made by the owners to the plaintiff and the co-lessees, the non-acceptance of this ingredient in the transaction operated to destroy the rights of the appellant. Mr. Akhtar Mahmood has placed before us ecisions from various High Courts, including some cases from Indian Jurisdiction. He has stated there was no absolute and unqualified acceptance within the meaning of section 7 of the Contract Act. We asked Mr. Akhtar Mahmood if he could point out any case, in which a view might have been taken that, for the mere reason of a contract relating to sale of immovable property, not devising a fixed date for completion, has been considered to be not fulfilling the ingredients of the law required to compose a contract. In other words, we wanted to know, if the date of completion of a contract was an essential requirement for the creation of a contract. Mr. Akhtar Mahmood has not been able to show us any case, in which such a view might have been taken, and we are clearly of the opinion that the mere absence of time in the fulfilment of a contract does not rob the contract of its basic characteristics.
41. ' We are, therefore, of the view that the question, whether there was a concluded contract, is always a question of fact, and has to be inferred from the evidence led and the documents produced by the parties. Evidence has yet to be recorded, and the plaintiff has succeeded in establishing a prima facie case that there was a legal and valid contract between the parties.
42. ' The learned Single Judge has, in the concluding part of the order, adverted to the aspect of the appellant having a prima facie case. The learned Judge does not appear to have considered the effect of paragraph 16 of the lease agreement, but has mainly been concerned to the correspondence that had followed in February', 1979. He has taken the view that, since the appellant has not accepted the offer in full viz, together with the agreement being entered into within a week, and further that, since the appellant also insisted on seeking clarification on the rights and claims of the owners and had stated that time for entering into an agreement had not been provided by the initial lease, the appellant had taken a new stand, which was contrary to the offer made by the landlords. In this regard, we must straightaway state that the lease agreement did not provide for any time to complete the agreement, and, if the appellant reminded the owners in regard to absence of such a statement in the initial lease, it would not show that the appellant had rejected the offer, or, not accepted the offer. The intention of the appellant may well have been to obtain a reasonable time. In that context, we cannot overlook that the price of the property was paid by the new purchasers to the sellers in July, 1980, and the agreement was executed three months thereafter. On the other :hand, by the letter, dated 14-3-1979, the appellant had agreed to pay ten per cent, of the value as earnest money any moment, and, in fact, he obtained three separate Pay Orders in April, 1979. Again, on 8-5-1979, the appellant wrote to the sellers that the sale in question may be expedited. These circumstances would indicate that the appellant was prepared to complete the agreement of sale far earlier than the date on which the sellers were able to obtain any money from the new purchasers.
43. ' A point has been raised by Mr. Akhtar Mahmood that the appellant alone was not entitled to obtain the property in question. He referred to the word "collectively" in paragraph 16 of the initial lease. As stated above, this word appears to have been used as a term of art, but evidence may perhaps be required for correctly interpreting the true import of this word. In any case, there are several letters on the record, which show that the sellers were ready and willing to sell the property to the appellant singly, and they had responded to the correspondence carried out by the appellant with them.
44. The next point is in regard to balance of convenience. In cases of specific performance of contracts, relating to immovable property, it cannot but be held that it is best to keep the property intact, so that any party, found entitled to the same, may be able to gain the rewards of the decree.
45. For such purpose, the Courts very often grant injunctions, so that the property is maintained in its shape and form, and complications and S litgation are avoided. In any case, a Receiver had been appointed by the Court in respect of this property. On the other hand, we cannot overlook that the entire construction on the plot in question has been done by the appellant, or perhaps even the co-lessees, In such circumstances, the balance of convenience definitely lies in favour of the appellant.
46. ' In regard to prejudice to a party, we hold the same view.
47. ' In the result, we allow this appeal is terms, which have been 'stated in the opening paragraph of this judgment.